In the Interest of D.H. and J.H., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1440
Filed January 21, 2021
IN THE INTEREST OF D.H. and J.H., Minor Children,
J.W., Mother,
Appellant,
D.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,
District Associate Judge.
A father and mother separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Victoria D. Noel of The Noel Law Firm, P.C., Clinton, for appellant mother.
Neill A. Kroeger, LeClaire, for appellant father.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Marsha Arnold, Davenport, attorney and guardian ad litem for minor
children.
Considered by Mullins, P.J., and May and Schumacher, JJ. Tabor, J., takes
no part.
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SCHUMACHER, Judge.
A mother and father separately appeal the termination of their parental
rights to their two young sons, D.H., born in December 2014, and J.H., born in
September 2019. The father challenges the sufficiency of the evidence for
termination and further argues the bond between himself and the children should
preclude termination pursuant to Iowa Code section 232.116(3) (2020). The
mother also challenges the sufficiency of the evidence relied on by the district court
for termination of her parental rights. We address each argument in turn.
1. Background Facts and Proceedings
D.H. and J.H came to the attention of the Iowa Department of Human
Services (DHS) in July 2019 due to concerns regarding lack of supervision when
four-year-old D.H., who is non-verbal and developmentally delayed, was located
outside of his home unsupervised and unclothed. He was found in the same
situation several days later; the second incident occurring when the mother was
sleeping and under the influence of marijuana. D.H. was placed in foster care
pursuant to a voluntary placement agreement on July 31, 2019. The father, a
registered sex offender, was arrested for possession of methamphetamine. The
mother, who was pregnant, was admitted to a hospital for psychological concerns.
She later entered the Heart of Iowa for inpatient substance-abuse treatment, where
she gave birth to J.H. The mother did not successfully complete inpatient
treatment at Heart of Iowa and transferred to a halfway house as an alternate
placement. Her stay at the halfway house was terminated due to the mother’s
noncompliance with the rules of the facility. The mother was given the option of
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going to another placement with the new baby. She declined and signed a
voluntary placement agreement for J.H. to be placed in foster care with his brother.
D.H. was adjudicated to be a child in need of assistance (CINA) on
August 22, 2019. He was formally removed from parental custody the same day.
J.H. was adjudicated a CINA on April 23, 2020. He was formally removed from
parental custody on that date, although he had been placed in foster care with his
brother three months earlier when his parents signed a voluntary placement
agreement on January 22, 2020. While a permanency hearing was originally
scheduled for July 2020, it was continued to the date of the termination hearing,
October 28.
Prior to the combined permanency and termination hearing, both parents
continued to lose battles in their personal wars with controlled substances. The
mother provided a drug patch that was positive for methamphetamine on
August 27 following completion of level one outpatient treatment and unsuccessful
inpatient treatment attempts. The father had positive methamphetamine tests on
January 30, July 2, and October 1. He removed a patch at the end of August while
he was under the influence of alcohol after a verbal altercation with the mother.
He acknowledges he does not remember removing his patch due to his use of
alcohol. Proof of the father’s completion of substance-abuse treatment is absent
from the record. He acknowledges he has not re-engaged in treatment since his
most recent relapse.
The district court terminated the father’s parental rights to D.H. pursuant to
section 232.116(1)(e), (f), (k), and (l) (2020) and to his youngest son, J.H.,
pursuant to section 232.116(1)(e), (h), (k), and (l). The father challenges all four
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grounds relied upon by the district court with respect to D.H. When the juvenile
court orders termination of parental rights on more than one statutory ground, we
need only find grounds to terminate on one of the sections to affirm. In re J.B.L.,
844 N.W.2d 703, 704 (Iowa Ct. App. 2014). We focus on section 232.116(1)(f) in
relation to the father’s rights concerning D.H. As to one-year-old J.H., the father
challenges grounds in section 232.116(1)(e), (k), and (I), leaving section
232.116(1)(h) unchallenged. We may therefore affirm the termination based on
the unchallenged ground. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
2. Analysis
We begin our analysis guided by defined case law and statutory guidance
concerning termination of parental rights. We do not “‘gamble with the children’s
future’” by asking them to continuously wait for a stable biological parent,
particularly at such tender ages. In re D.W., 385 N.W.2d 570, 578 (Iowa 1986)
(quoting In re Kester, 228 N.W.2d 107, 110 (Iowa 1975)); see also In re D.W., 791
N.W.2d 703, 707–08 (Iowa 2010); In re L.L., 459 N.W.2d 489, 495 (Iowa 1990)
(“Children simply cannot wait for responsible parenting. Parenting . . . must be
constant, responsible, and reliable.”).
Under section 232.116(1)(f), parental rights may be terminated if the court
finds all of the following have occurred:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
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(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
The father does not challenge the first three elements. D.H. is four years of
age or older; he has been adjudicated pursuant to section 232.96; and D.H. has
been out of the physical custody of his parents for at least twelve of the last
eighteen months, or for the last twelve consecutive months, and any trial period at
home has been less than thirty days. D.H. has not been the subject of a trial home
period since his removal.
The father focuses his argument on the fourth element of section
232.116(1)(f). He argues at the time of the termination hearing, he was making
progress on case plan expectations.1 See Iowa Code § 232.116(1)(f)(4) (requiring
clear and convincing evidence that the child cannot be returned to parental custody
at the present time); D.W., 791 N.W.2d at 707 (interpreting the statutory language
“at the present time” to mean “at the time of the termination hearing”).
The district court found D.H. could not safely be returned to the custody of
his parents at the time of the termination hearing, noting the father was still testing
positive for the presence of illegal substances, he was not addressing his
substance-abuse issue, and the original adjudicatory harm continued to exist. The
father’s counsel acknowledged the children could not be returned to the father’s
custody on the day of the termination hearing in his closing argument, stating,
I think the testimony today shows that the parents have been making
progress, not sufficient at this time to return the kids to them today,
but they both seem to understand exactly what they need to do now
1The father does not argue on appeal that he should have been granted more time
pursuant to Iowa Code section 232.104(2)(b).
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and intend to do it. So we’re asking for more time and a continuance
so that they can fully accomplish everything . . . .
D.H. has been removed from parental custody for over a year, with little
progress on behalf of the father toward the issues that brought D.H. to the attention
of the court. We further note the record reflects the father has not attended
substance-abuse treatment since his recent relapse on methamphetamine. The
father’s visits with the children have never progressed beyond supervised. We
agree that D.H. could not be returned to his father’s custody at the time of the
termination hearing, finding clear and convincing evidence in the record for
termination under section 232.116(1)(f) as to D.H.
We next address the termination of the father’s parental rights as to J.H.
Under section 232.116(1)(h), the court may terminate the rights of a parent to a
child if: (1) the child is three years old or younger, (2) the child has been
adjudicated a CINA under section 232.96, (3) the child has been out of the parent’s
custody for at least six of the last twelve months or the last six consecutive months,
and (4) “[t]here is clear and convincing evidence that the child cannot be returned
to the custody of the child’s parents as provided in section 232.102 at the present
time.”
While the father does not challenge termination of his rights under section
232.116(1)(h), on our de novo review of the record, we find sufficient evidence to
support this statutory ground. J.H. is one year old. He was adjudicated to be a
CINA and had been out of his parents’ custody since adjudication, a consecutive
period of over six months. We find there is clear and convincing evidence J.H.
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could not be returned to his father’s custody at the time of the termination hearing
based on his father’s unaddressed substance-abuse issues.
The father also argues an exception to termination under section 232.116(3)
should be applied to avoid termination. Specifically, the father argues that the
bond between father and sons should preclude termination. He highlights the
relationship he has with D.H. However, as we have previously stated, “the factors
weighing against termination in section 232.116(3) are permissive, not
mandatory.” In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011). The court
may exercise its discretion in deciding whether to apply the factors in section
232.116(3) to save the parent-child relationship based on the unique
circumstances of each case and the best interests of the children. In re A.M., 843
N.W.2d 100, 113 (Iowa 2014).
We disagree with the father’s argument concerning the application of a
permissive exception. First, the statute requires “clear and convincing evidence
that termination would be detrimental to the child due to the closeness of the
parent-child relationship.” Iowa Code § 232.116(3)(c). Even if we were to assume
the father and the children have a close bond, which we question given that J.H.
has been out of parental custody the majority of his life and D.H. has been removed
from parental custody for over a year, such bond is not alone sufficient for purposes
of the permissive exception. This record is void of clear and convincing evidence
termination would be detrimental to either child. The evidence establishes the
converse. When D.H. was removed from parental custody, he was non-verbal.
He has special needs that must be addressed. While he is beginning to use some
words, he requires constant supervision and is unable to do basic tasks for a child
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of his age. J.H. is a very young child who is unable to self-protect. Secondly, while
we have no doubt the father loves both of his sons, love is not enough to trigger
this exception. See D.W., 791 N.W.2d at 709 (noting the consideration when
assessing the exception in section 232.116(3)(c) is not the parent’s love for the
child, but whether the child will be disadvantaged by termination). The
disadvantages of termination do not overcome the safety concerns that would
come with denying termination concerning D.H. and J.H.
We turn next to the mother’s arguments on appeal. The district court
terminated the mother’s parental rights to D.H. pursuant to section 232.116(1)(e),
(f), (k), and (l) and terminated the mother’s parental rights to her youngest son,
J.H., pursuant to section 232.116(1)(e), (h), (k), and (l). The mother challenges
sufficiency of the evidence under section 232.116(1)(d), (h), and (I).2 We may
affirm the termination based on the unchallenged grounds. See S.R., 600 N.W.2d
at 64. We, therefore, affirm the termination of the mother’s parental rights
concerning D.H. under section 232.116(1)(f), an unchallenged ground. We affirm
the termination of the mother’s parental rights as to J.H. under section
232.116(1)(h), finding the record contains clear and convincing evidence to
support termination under this ground challenged by the mother as to J.H.
Like the father, the mother challenges only the fourth element of section
232.116(1)(h), arguing that the child could be safely transitioned to her care. We
disagree. The mother failed to complete inpatient treatment. While she completed
level one outpatient treatment in July 2020, she had a positive drug screen for both
2The district court did not rely on section 232.116(1)(d) for termination for either
D.H. or J.H.
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marijuana and methamphetamine following outpatient treatment. The mother has
not consistently addressed her mental health. We agree with the district court that
J.H. could not be safely returned to the mother at the time of the termination
hearing given these unresolved issues.
3. Conclusion
Based on our de novo review of the record, we conclude termination of the
father’s parental rights was warranted under section 232.116(1)(f) as to D.H. and
under section 232.116(1)(h) as to J.H. We further agree that an exception to
termination under section 232.116(3) should not preclude termination between the
father and his sons under the facts of this case. We concur with the district court’s
conclusion termination of the mother’s parental rights was warranted under section
232.116(1)(f) as to D.H., and section 232.116(1)(h) as to J.H.
AFFIRMED ON BOTH APPEALS.